Opinion
No. 32138.
October 19, 1960.
Appeal from the 72nd Judicial District Court, Lubbock County, Victor H. Lindsey, J.
A. W. Salyars, Lubbock, for appellant.
George E. Gilkerson, Dist. Atty., Ray Sanderson, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is burglary of a motor vehicle; the punishment, one year.
Our prior opinion dismissing the appeal is withdrawn, and the case will now be considered on its merits.
Earl Waldrup testified that he was at the hospital in Lubbock after midnight on the night in question attending his stepfather who was ill but that he was looking out the window because he expected someone to come and relieve him. He stated that a 1950 or 1951 light colored Nash automobile drove onto the parking lot, which was illuminated by the emergency entrance light, and came to a stop; that a man the same size as appellant got out of the Nash and entered the automobile parked next to his automobile and a short while thereafter reentered the Nash. He stated that this procedure was repeated several times with other automobiles parked on the parking lot; on one occasion he saw the man return to the Nash with a quantity of clothes and he instructed the nurse on duty to call the police.
Mrs. Beckham testified that she was on duty as a nurse at the hospital on the night in question, that she had driven to work in her family automobile, had rolled up the glass and closed the doors, but had filed to lock the same. She identified as hers a flashlight and several other items that were in her automobile upon her arrival at the hospital and were missing when the police questioned her later that night.
Police officers Berry, Wright and Riemer testified that as they arrived at the hospital parking lot they observed a 1951 light green Nash attempting to drive away and placed their automobile in a position to prevent its departure, at which juncture Mr. Waldrup approached the Nash, where they were talking to appellant, and said 'That's the man you want, there.' They testified that they searched appellant's automobile and found therein the flashlight in question as well as some papers and clothes bearing the name of Beckham.
Appellant did not testify or offer any evidence in his own behalf.
Appellant's principal contention is that the fruits of the search of appellant's automobile were inadmissible because the search was illegal, not being based upon probable cause. We do not agree. Waldrup stated that there were no persons on the parking lot at the time the man entered several automobiles save the man in the Nash. It was appellant who was leaving in the Nash at the time the officers arrived in answer to the call. Waldrup identified appellant as the man the officers wanted. Regardless of what Waldrup may have testified later as to his inability to positively identify appellant, he furnished the officers with probable cause when he said, "There is your man.'
Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.